When Family Members Disagree About Who Should Be the Administrator

Published February 12, 2019 · For Grieving Families

Grief does not always bring families together. After a sudden death, old tensions can surface, and new ones can form around decisions no one expected to make. One of the most common is a question that sounds technical but feels deeply personal: who should be the administrator of the estate?

In an Ohio wrongful death case, that question matters more than many families realize. This post explains why, what Ohio law says about who has priority, and how families can work through a disagreement without losing sight of what matters.

Why the administrator matters in a wrongful death case

Under R.C. 2125.02(A)(1), a wrongful death action in Ohio is brought in the name of the personal representative of the person who died. When there is a will, that person is usually called the executor. When there is no will, the probate court appoints an administrator.

The personal representative does not bring the case for himself or herself. The statute says the action is for the exclusive benefit of the surviving spouse, the children, and the parents, all of whom are presumed to have suffered damages, and for the other next of kin. In other words, the administrator acts on behalf of the whole family.

That is an important point to keep in mind during a disagreement. Being the administrator does not mean receiving a larger share. It means taking on responsibility: working with the lawyer, signing papers, attending court, keeping relatives informed, and answering to the probate court. Under R.C. 2125.02(C), any settlement requires the consent of the court that made the appointment, and that review is designed to protect everyone the claim belongs to.

Who has priority under Ohio law

When there is no will, R.C. 2113.06 sets the order in which administration is granted:

1. The surviving spouse, if a resident of Ohio.
2. One of the next of kin, if a resident of Ohio.

If those with priority do not take or renounce the role voluntarily, the statute requires the matter to be set for hearing with notice to them. And if there is no one entitled, or those entitled are unsuitable, or they neglect to apply within a reasonable time without sufficient cause, they lose their priority and the court appoints a suitable Ohio resident.

The person who applies must file an application listing the surviving spouse and all known next of kin, under R.C. 2113.07. Those with priority may sign a waiver. If they do not, they must be given notice so they can say whether they want to serve.

Common sources of conflict

In our experience, disagreements about the administrator tend to come from a few places:

• Blended families. A surviving spouse and adult children from an earlier marriage may not know each other well, or may not trust each other.
• Distance. A relative who lives out of state may not be able to serve, even if he or she is the one the family would naturally choose.
• Fear of being left out. Relatives worry that the administrator will make decisions without them or will control the money.
• Different views about the case itself. One person may want to pursue a claim aggressively while another wants to avoid conflict or simply cannot face it.

Most of these fears can be addressed with information and communication, without a court fight.

Ways to resolve a disagreement

Talk about the role, not the person. It often helps to explain what the administrator actually does and does not do. Because the wrongful death claim belongs to the family as a group, and because any settlement requires the probate court's consent, no single relative can simply decide the case alone.

Agree on how information will be shared. Many conflicts ease when relatives know they will be kept informed. A family can agree on regular updates from the administrator or from the lawyer.

Consider who is practically able to serve. The priority in R.C. 2113.06 goes to Ohio residents, so a relative who lives elsewhere should ask a lawyer whether he or she can serve. Whoever serves should be able to respond to the court and the lawyer and be willing to carry the responsibility for what may be a long case.

Use waivers when there is agreement. If the family agrees on one person, others with priority can sign waivers, which can make the appointment smoother.

Let the court decide if you must. If the family cannot agree, the probate court will hold a hearing and decide. That is not a failure. It is what the process is for.

What if the administrator will not pursue the case?

Sometimes the conflict arises after appointment. A relative may be appointed for an estate and then refuse to bring a wrongful death claim, perhaps because the person responsible is a friend or relative, or because he or she does not want the stress.

Ohio law addresses this directly. Under R.C. 2113.18(B), the probate court may remove an executor or administrator on the motion of the surviving spouse, children, or other next of kin if the executor or administrator refuses to bring a wrongful death action and the court determines that a prima facie case for a wrongful death action can be made from the information available. More generally, R.C. 2109.24 allows the probate court to remove a fiduciary for reasons that include neglect of duty or because the interest of the estate demands it.

Keep an eye on the deadline

Family disagreements take time, but the deadline does not wait. Under R.C. 2125.02(D)(1), a wrongful death action generally must be filed within two years after the death. A dispute about who should serve should be raised and resolved early, so that the case itself is not put at risk.

If relatives first want to know whether there is a case at all, a new procedure that takes effect on March 22, 2019 will let an eligible family member ask the probate court for a loved one's medical records before an estate is opened. Our post on House Bill 595 explains it. If there are children in the family, our post on talking with children about a sudden death may help as well. You can read more about how Ohio wrongful death law works and what the family may recover.